On Tuesday the justice secretary sought to impress the House of Commons with his sincerity over the legal aid consultation process. He told Members: “The recent consultation “Transforming Legal Aid” generated around 16,000 responses, which, contrary to reports, have been read extensively by individuals, including many by myself. Many were from smaller law firms or those who work within a smaller law firm…I met a number of people from smaller firms in the north-west last week, and we will continue to talk to all the representative bodies in the weeks ahead.”

In reply to a question from Sir Alan Beith he said: “Over the past few weeks, I have had very constructive engagement with the Law Society and I welcome the counter-proposals it has put to us. We have recognised many shared objectives in that and it has behaved with professionalism over this matter. I was very disappointed that when the Bar Council submitted its report and recommendations to us in response to our consultation it did not contain the same degree of constructive engagement. I am due to meet the Bar Council later today and I hope we will see that change.” This looks like another attempt to drive a wedge between the two main legal bodies.

He engaged again with Beith on Wednesday in Beith’s capacity as Chair of the Justice Committee. Giving evidence to the committee, Grayling said that he did not accept his decision to retain client choice would cause the whole of the planned criminal legal aid reforms to unravel. Allowing client choice was because the market had told him that it was most important. He had listened to views and his instinct told him that it was the ‘right thing to do’.

In combative form, he dismissed as a myth the suggestion that quality of service had been ignored in the consultation. He said he had been really surprised by the profession’s warning that the reforms would destroy quality and result in ‘cheap and cheerful’ legal services. He did not accept that the residency test would have a serious effect on vulnerable people, such as victims of trafficking or immigrants suffering domestic violence, though the case of babies under 12 months was the one area that the government will look at again.

He did not accept that the proposed changes on judicial review posed any constitutional issues, nor did he accept that black and minority ethnic (BME) firms would be disproportionately affected by the proposals. He said that BME lawyers were no less capable of adapting to the challenges of delivering new business models than others.

Neither did he accept that paying the same price for a guilty plea as for a trial would lead to clients being encouraged to plead guilty. He said he did not believe ‘for a second’ that high professional standards would lead to any danger of that happening.
His major announcement was that the MoJ will publish a second, short consultation on its finalised legal aid proposals in September. “We will move shortly to bring forward alternative thoughts based on our discussions with the Law Society”, he said, but it was left unclear what the scope of the second consultation would be. The requirement to save £220m, which will pay for about two miles of track for the white elephant HSR2 scheme, remains paramount.

In the meantime the Law Society has been forced to defend its proposed alternative scheme amid growing anger among some criminal solicitors. The chair of the Society’s criminal law committee, Richard Atkinson, said he understood some of the concerns that have been expressed, but added that much of what is being said is “ill-informed and plain wrong.”

“The Law Society is not selling out or sacrificing sole practitioners or indeed any other of its members,” he said, adding that the Law Society’s proposals have to be judged against the government’s PCT proposals not the status quo, which has been shown to be unviable and which is not an option for the government. While the Law Society’s scheme includes market consolidation, Atkinson said it gives practitioners ‘certainty’.

In a plea for the unity that has been shown by the profession to continue, he said: “Don’t allow misinformation and wild speculation to undermine what we have achieved so far. This is a time for holding our nerve and staying united.”

This post was written by:

Mike Gribbin is a retired Civil Servant with wide experience, including the drafting and implementation of Parliamentary legislation and regulations. He is the editor of “Criminal Offences Handbook”, a uniquely comprehensive guide to more than one thousand ways to fall foul of UK criminal law. He is Editor of the Upper Case Legal Journal and has been writing blog posts for the past eight years.